The Ninth Circuit has remanded a request for protection under the Convention Against Torture filed by a lesbian woman who had been targeted by Los Zetas. “Both the IJ and the BIA relied on national efforts to combat drug cartels and the corruption of public officials in order to find that ‘the government’ would not acquiesce in any torture Petitioner might suffer. Yet the record compels the conclusion that the corruption of public officials remains a problem, including specifically with regard to Los Zetas. The BIA even admitted that ‘there are corrupt officials.’”
“In addition to the extensive country conditions evidence indicating the prevalence of acquiescence by public officials in the torture committed by Los Zetas generally, Petitioner testified that she was personally beaten severely and threatened with death at gunpoint by a member of Los Zetas, while Mexican police officers looked on and did not nothing but laugh. This testimony, which the IJ found credible, establishes the acquiescence of public officials in a past instance of torture.” “As explained above, the country conditions evidence shows that corruption of government officials, especially of the police with regard to drug cartels, and specifically with regard to Los Zetas, remains a major problem in Mexico. The country conditions evidence certainly does not indicate that low level government corruption has been so rectified as to render insufficient Petitioner’s testimony regarding acquiescence by specific police officers in Petitioner’s specific circumstances.”
“In summary, the record compels the conclusion that Petitioner has established the requisite level of acquiescence by public officials to satisfy that aspect of her CAT claim. She testified to multiple instances of such acquiescence in the past involving her personal circumstances, and presented extensive country conditions evidence documenting the widespread problem of public official acquiescence in Zetas crimes generally.”
With respect to internal relocation, “neither the IJ nor the BIA expressly stated that the burden was on Petitioner to prove impossibility of relocation, [but] their analyses strongly indicate that they applied this reasoning anyway. The BIA concluded that the IJ “‘found an absence of evidence indicating that the applicant could not relocate.’ The IJ stated that ‘Mexico is a large country’ and ‘[i]t seems unlikely that there is nowhere in Mexico that the applicant could live without being harmed.’ Neither the IJ nor the BIA cited any affirmative ‘[e]vidence that [Petitioner] could relocate to a part of [Mexico] where . . . she is not likely to be tortured.’”
“Moreover, contrary to the IJ’s and BIA’s findings, extensive record evidence shows that Los Zetas operate in many parts of Mexico.” “Neither the IJ nor the BIA cited any evidence that there are states in Mexico where Los Zetas are unable to operate.” “Even if Los Zetas did not find her, Petitioner is at heightened risk throughout Mexico on account of her sexual orientation. Extensive record evidence demonstrates that LGBTQ individuals are at risk throughout Mexico. We have rejected reasoning such as the IJ employed here, that an applicant can be deemed able to safely relocate based on hiding her fundamental identity.”
The full text of Xochihua-Jaimes v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/26/18-71460.pdf